The Rape Captial - Gang Rape in Moving Bus in Delhi, Are Women Safe in our Capital ? Yet Another Story

The Rape Captial - Gang Rape in Moving Bus, Are Women Safe in our Capital ? Yet Another Story
Do we need another gang-rape before we start acting? Castrate the rapists in public. Why should we keep mum and tolerate gruesome brutality in the name of human rights? Human rights are not for demons! Justice delayed is justice denied.
Anukriti Sharma
DELHI HIGH COURT
Before :- H. R. Khanna, J. 
Criminal Appeal No. 34 of 1968. D/d. 27.6.1969


Roshan Lal - Appellant
Versus
State - Respondent.

For the Appellant :- Dharam Pal Sud for Chhabildass, Advocate.
For the Respondent :- Om Parkash Sharma on behalf of R.S. Phul, Advocates.

Cases Referred :-
1. E.G. Barsey v. State of Bombay, AIR 1961 SC 1762.
2. Joginder Singh v. State, 1969 Delhi LT 1 (FB).
3. Som Datt Datta v. Union of India, AIR 1969 SC 414.

JUDGMENT

H. R. Khanna, J. :- Roshan Lal and Mela Ram, both aged 22 years, have been convicted by learned Sessions Judge, Kangra, under Section 376, Indian Penal Code, and each of them his been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 200 or in default to undergo rigorous imprisonment for a further period of six months. Roshan Lal has filed appeal No. 34 of 1968 while Mela Ram has filed appeal No. 26 of 1968. This judgement would dispose of both the appeals.
2. The prosecution case is that Swaran Lata (P.W. 2) was born on May 15, 1955. During the days of present occurrence she was a student of Government High School, Bharwain which is at a distance of two miles from village Ambokla Pritam wherein Swaran Lata lived with her father Hans Raj (P.W. 16). Hans Raj runs a karyana shop at village Bharwain. On July 23, 1966, it is stated, Swaran Lata left the shop of her father in village Bharwain with a gunny bag containing 10 or 12 Kilograms of wheat flour for her house in village Ambokla Pritam. While moving on the Kacha path when she was near a small pool of water, Swaran Lata saw Roshan Lal and Mela Ram accused following her. Roshan Lal accused belongs to the Central Reserve Police and was in those days imparting rifle training to the students of Government High School, Bharwain. There is co-education in that school. Mela Ram was a sepoy in the Indian Army and was in those days on leave, having taken leave from July 9, 1966 to September 6, 1966. The accused threw away the gunny bag of wheat flour carried by Swaran Lata and caught bold of her. Swaran Lata raised alarm and gave a tooth bite on the hand of Mela Ram. The two accused then threw Swaran Lata across the hedge and gave a blow to her with danda Exhibit P.1. Cloth Exhibit P.2 was spread on the ground by the accused and Mela Ram broke open the string of the Shalwar of Swaran Lata. As Swaran Lata was crying and raising alarm, Mela Ram gagged her mouth with her chuni, as a result of which two or three teeth of Swaran Lata became shaky. Mela Ram then caught hold of the arms of Swaran Lata and Roshan Lal committed rape upon her. Roshan Lal thereafter caught hold of the arms of Swaran Lata and Mela Ram committed rape upon her. Swaran Lata then gave a bite on the hand of Roshan Lal with her teeth. Blood came out of the mouth and vagina of Swaran Lata and her clothes got stained with blood.
3. At the time of the occurrence, Amrit Lal (P.W. 3) and Dina Nath (P.W. 8) were present in their maize fields, which adjoin each other, at a short distance from the place of occurrence. On hearing alarm Amrit Lal and Dina Nath went towards the place of occurrence which is on a higher elevation than their fields. They then saw Mela Ram accused lying on Swaran Lata and Roshan Lal holding her by the arms. On seeing Amrit Lal and Dina Nath the two accused ran away. Amrit Lal and Dina Nath found Swaran Lata in a bad condition. She was bleeding from the mouth and her private parts and her legs were soiled. There was cloth in her mouth which was taken out by Amrit Lal. Swaran Lata could speak with difficulty and she told them that she had been raped by Roshan Lal and Mela Ram. Amrit Lal then put the Shalwar on the person of Swaran Lata and carried her to her house. Dina Nath carried the gunny bag containing wheat flour. On arrival at the house, Swaran Lata narrated the occurrence to her elder brother Mast Ram. Mast Ram then went to Bharwain and called his fatter Hans Raj. The occurrence was narrated to Hans Raj also by Swaran Lata. Swaran Lata was then taken to Chintpurni. P.W. Amrit Lal also went with Swaran Lata and her father to Chiutpurni. Swaran Lata was admitted in the Civil Dispensary, Chintpurni at 2.30 a.m. Amrit Lal, however, proceeded to police station Amb, at a distance of about 9 miles from the place of occurrence and lodged there report Exhibit P.H. at 4.30 a.m.
4. S.I. Mohinder Singh, after recording the report Exhibit P.H., came to the place of occurrence and took into possession danda Exhibit P.1. The Sub-Inspector arrested Roshan Lal accused on July 29, 1966 at noon time, Roshan Lal was also got medically examined the same day from Dr. R.S. Nanda. The different clothes of Swaran Lata as well as cloth Exhibit P.2 on which she was laid, were taken into possession by the Sub-Inspector and were made into sealed parcels. The Sub-Inspector took into possession the school certificates relating to Swaran Lata according to which her date of birth was May 16, 1955. Mela Ram accused, who had been granted leave from July 9, 1966 to September 6, 1966 rejoined his Unit without availing of the full leave on August 4, 1966. S.I. Mohinder Singh sent HC Gian Singh for the arrest of Mela Ram accused from his Unit along with an authority letter. HC. Gian Singh arrested Mela Ram on August 31, 1966 with the permission of military authorities. Mela Ram too was thereafter got medically examined for his potency.
5. The Chemical Examiner, to whom Shalwar, Dopata and underwear of Swaran Lata were sent, found semen and blood on those clothes. Semen and blood was also found on the piece of cloth on which Swaran Lata had been laid at the time of the occurrence.
6. Dr. R.S. Nanda examined Swaran Lata at 7.30 a.m. on September 27, 1966 and made the following observations :
    (1) Bleeding from nose, mouth (gums) and vagina.
    (2) Painful haematomas with reddish skin on the back of the right scapular region, inter scapular region, back of neck, right side of the neck and middle of right arm, and both legs in their middle and left cheek.
    (3) A linear laceration (scratch) on the back about one inch in the centre of back in thoracic region, 3-4 scratch marks on the right scapular region, 2 to 3 scratch marks in the inter-scapular region and 1 to 2 scratch marts on the lower back, laceration on both lips and blood tinged nostril.
    (4) Gums of one incisor and one canine tooth on right side. The canine tooth and one incisor on right side partially dislocated. Canine was dislocated near to complete dislocation.
7. Labium major a was normal. There was slight laceration on labia minora. Hymen was found to be perforated. Swaran Lata was found to be semi-conscious. According to the Doctor, Swaran Lata had bean subjected to forcible sexual intercourse. Injury No. 2 could be the result of a blow with danda Exhibit P.1. In the opinion of the Doctor, the laceration of labia minora showed complete penetration Swaran Lata remained an indoor patient in Civil Dispensary, Chintpurni, from July 29, 1966 to August 28, 1966.
8. Roshan Lal accused was examined by Dr. Nanda on July 29, 1966 and was found to have oyal laceration with brownish crust on the right thiner eminence (tooth mark). There was another laceration on the palm of the right hand near the lateral border. Slight laceration was also noticed on the glans penis. Smegma was not present. Roshan Lal, in the opinion of the Doctor, was sexually potent.
9. Mela Ram accused was examined by Dr. Nanda on September 3, 1966 and was found to be sexually potent.
10. The two accused in their statements under Section 342 of the Criminal Procedure Code, denied all the prosecution allegations levelled against them and stated that they had been falsely involved in this case. As regards the injury on his hand, Roshan Lal stated that the same was sustained by him while cleaning sten-gun and rifle. According to Roshan Lal, P.W. Moti Ram used to raise propaganda against him that he was of an undesirable character and should not impart training to the girls. Roshan Lal consequently gave thrashing to Moti Ram twice, Moti Ram thereupon falsely implicated Roshan Lal in this case. Mela Ram accused attributed his implication in this case to the existence of enmity between his father and P.W. Hans Raj. No evidence wag produced in defence.
11. The learned Sessions Judge accepted the prosecution case and held that the offence of rape by the two accused on a young girl of 11 years stood proved beyond reasonable doubt. The accused were, accordingly, convicted and sentenced as above.
12. I have heard Mr. Sud and Mr. Malhotra on behalf of the appellants, and Mr. Phul and Mr. Nag on behalf of the State, and am of the view that the case under Section 376, Penal Code, has been fully proved, against the two accused. There can be no manner of doubt that Swaran Lata was subjected to rape. Dr. R.S. Nanda, who examined Swaran Lata after the occurrence, found her bleeding from her nose, mouth and vagina. Besides other injuries, the Doctor found that her hymen had been perforated and there was laceration of labia minora. The injuries on the person of Swaran Lata, in the opinion of the doctor, were the result of forcible sexual intercourse. According to the prosecution it were the two accused, Roshan Lal and Mela Ram, who committed rape upon Swaran Lata and thus caused her injuries. In support of its case, the prosecution examined Swaran Lata (P.W. 2) and she gave evidence about her having been subjected to rape by the two accused in the circumstances given above. After having been taken through the evidence of Swaran Lata, I see no cogent ground whatsoever to disbelieve the same. The testimony of Swaran Lata is supported by that of Amrit Lal (P.W. 3) and Dina Nath (P.W 8) who were both attracted to the scene of occurrence on hearing the cries of Swaran Lata.
According to them when they came near the place of occurrence they saw Mela Ram lying on Swaran Lata and Roshan Lal holding her by the arms. The two accused on seeing Amrit Lal and Dina Nath ran away. When the witnesses arrived at the spot where Swaran Lata was lying, they found her bleeding from the mouth and her private parts. They also found a cloth stuck up in her mouth. When that cloth was removed from her month, Swaran Lata told them that she had been raped by Roshan Lal and Mela Ram. There appears to be no cogent ground as to why the evidence of Amrit Lal and Dina Nath be not accepted. They have not been shown to have any animus against the accused and I see no reason as to why they should falsely depose against the accused. The fact that there was a tooth mark on the right thenar eminence of Roshan Lal accused when he was examined by Dr. Nanda on July 29, 1966, also lends corroboration to the statement of Swaran Lata that she gave a tooth bite on the hand of Roshan Lal when he caught hold of Swaran Lata.
13. Argument has been advanced on behalf of the accused-appellants that their identity as the culprits responsible for the offence cannot be held to have been proved. Reference in this connection has been made to the statement of Amrit Lal in cross-examination that he did not know Roshan Lal accused before the occurrence and that he saw him for the first time on that day. According, further, to Amrit Lal, the name of Roshan Lal was given to him by Swaran Lata and therefore he mentioned his name in the report. Reference has also been made to the fact that according to P.W. 21 Parhu Ram, Naik Clerk of 16 Punjab Regiment, Mela Ram accused had given his official address in his Pay Book as village Dofda, Tehsil Rampur, District Mahasu. In this respect I find that the evidence of Swaran Lata shows that during the days of occurrence Roshan Lal accused used to impart rifle training in Government High School, Bharwain, of which School Swaran Lata was a student. The fact that he was imparting rifle training to the students of that school in those days is also admitted by Roshan Lal accused in his statement under Section 342 of the Criminal Procedure Code
In the circumstances there could be no difficulty for Swaran Lata to fix the identity of Roshan Lal accused. Further the evidence of P.W. Dina Nath shows that the witness knew both the accused and that he saw both of them running away when he arrived near the place of occurrence along with Amrit Lal. As regards Mela Ram accused I find that the statement of Swaran Lata shows that she knew Mela Ram as he was a resident of village Ray (Rehi) which was on the way to her school. In addition to that we have the statement of P.W. Dina Nath who has deposed that he knew Mela Ram because the boundary of Mela Ram's field adjoined the boundary of the field of the witness. There appears to be no cogent ground to disbelieve the evidence adduced by the prosecution in this respect. The above evidence clearly shows that Mela Ram accused was known to Swaran Lata and Dina Nath witnesses. Although attempt has been made on behalf of Mela Ram to show that he belongs to village Dofda in District Mahasu and not to village Rehi, it is significant that in his statement made before the Committing Magistrate, Mela Ram gave the name of his village as Rehi, Tehsil Dera Gopipur.
According further to Mela Ram he has been falsely involved in this case because of a dispute between his father and P.W. Hans Raj. The occasion for such an alleged dispute could only arise if both of them belonged to the same area. As things are, I find it difficult to believe that Mela Ram would be involved because of any such dispute between his father and P.W. Hans Raj. There is no evidence of any such dispute. Otherwise too it seems highly incredible that Hans Raj would stoop so low as to involve his minor daughter is a matter of this type just to falsely involve the son of a person with whom he had a dispute.
14. Argument has also been advanced on behalf of Mela Ram by Mr. Malhotra that as he was employed in the Army at the time of the present occurrence he could be only tried before a Court Martial. Reference in this connection has been made to Section 2 of the Army Act which provides inter alia that a person enrolled under the Act shall be subject to that Act. Section 3(i) of the Act defines "active service." "Civil Offence" has been defined in Clause (ii) of that section as meaning offence which is triable by a criminal Court. According to notification dated November 28, 1962 under Section 9 of the Act the Central Government has declared that all persons subject to the Act, who are not on active service under Clause (i) of Section 3, shall be deemed to be on active service within the meaning of the Act. Sections 69 and 70 deal with civil offences and read as under :-
    "69. Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say, -
    (a) If the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
    (b) In any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
70. A person subject to this Act who commits an offence of murder against a person not subject to military, naval or AIR force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences -
    (a) while on active service, or
    (b) at any place outside India, or
    (c) at a frontier post specified by the Central Government by the notification in this behalf."
Sections 125 and 126 make provision about the choice of trial by a criminal Court and court-martial and the procedure to be applied. The two sections read as under :-
    "125. When a criminal Court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in military custody.
126. (1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.
    (2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final."
The different provisions of the Army Act were considered by the Supreme Court in the case of E.G. Barsey v. State of Bombay, AIR 1961 SC 1762. Major Barsey in that case had been convicted under Section 120-B of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act after he was tried in the court of Special Judge, Poona. Contention was advanced on behalf of Major Barsey in the Supreme Court that a criminal Court could not have jurisdiction to try the offence unless requisite notice was given to the officer referred to in Section 125 of the Act. This contention was repelled. Subba Rao, J., as he then was, speaking for the Court observed -
    "Section 125 presupposes that in respect of an offence both a criminal Court as well as a court-martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act as well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Act. Under the scheme of the said two provisions, in the first instance, it is left to the discretion of the officer mentioned in Section 125 to decide before which court the proceedings shall be instituted and, if the officer decides that they should be instituted before a court-martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, he may issue the requisite notice under Section 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the officer may either deliver over the offender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be final. These two sections provide a satisfactory machinery to resolve the conflict of jurisdiction, having regard to the exigencies of the situation."
It was further observed :-
    "(18) The scheme of the Act therefore is self-evident. It applies to offences committed by army personnel described in Section 2 of the Act; it creates new offences with specified punishments, imposes higher punishments to pre-existing offences, and enables civil offences by a fiction to be treated as offences under the Act; it provides a satisfactory machinery for resolving she conflict of jurisdiction. Further it enables, subject to certain conditions, an accused to be tried successively both by court-martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India; nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inference, for they in express terms provide not only for resolving conflict of jurisdiction between a criminal court and a court-martial in respect of a same offence, but also provide for successive trials of an accused in respect of the same offence."
It was also observed :
    "The appellant and the other accused were charged in the present case, among others, for having been parties to a criminal conspiracy to dishonestly or fraudulently misappropriate or otherwise convert to their own use the military stores and also for dishonestly or fraudulently misappropriating the same. The said acts constitute offences under the Indian Penal Code and under the Prevention of Corruption Act. They are also offences under Section 52 of the Army Act. Though the offence of conspiracy does not fall under Section 52 of the Act, it, being a civil offence, shall be deemed to be an offence against the Act by the force of Section 69 of the Act, with the result that the offences are triable both by any ordinary criminal court having jurisdiction to try the said offences and a court-martial. To such a situation Section 125 and 126 are clearly intended to apply. But the designated officer in Section 125 has not chosen to exercise his discretion to decide before which court the proceedings shall be instituted. As he has not exercised the discretion, there is no occasion for the criminal court to invoke the provisions of Section 126 of the Act, for the second part Section 126(1), which enables the criminal court to issue a notice to the officer designated in Section 125 of the Act to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government, indicates that the said Sub-Section presupposes that the designated officer has decided that the proceedings shall be instituted before a court-martial and directed that the accused person shall be detained in military custody. It no such decision was arrived at, the Army Act could not obviously be in the way of a criminal court exercising its ordinary jurisdiction in the manner provided by law."
15. A view similar to that expressed in Barsey's case AIR 1961 SC 1762 was taken by their Lordships of the Supreme Court in the case of Som Datt Datta v. Union of India, AIR 1969 SC 414, about the effect of the sections.
16. Coming to the facts of the present case I find that the offences of rape of Swaran Lata is also triable by court-martial according to Section 70 of the Army Act because Mela Ram should be deemed to be on active duty in view of the notification under Section 9 of the Act. The material on the record, however, indicates that H.C. Gian Singh was sent by S.I. Mohinder Singh (P.W. 20) along with an authority letter Exhibit P.W. 15/A addressed to the Commanding Officer, 16 Punjab Regiment, for the arrest of Mela Ram. According to H.C. Gian Singh (P.W. 15) he arrested Mela Ram accused on August 31, 1966 with the permission of the military authorities. There is nothing to show that the designated officer has exercised his discretion under Section 125 of the Act that Mela Ram should be tried by a court-martial. On the contrary the fact that the military authorities handed over Mela Ram to the police and did not detain him in military custody shows that they had no objection to his trial before the criminal court. Further, as there has been no exercise of discretion in terms of Section 125 of the Act, "there is" in the words of their Lordships "no occasion for the criminal Court to invoke the provisions of Section 126 of the Act." Both criminal Court as well as the court-martial had jurisdiction to try Mela Ram for the offence of rape. The competent military authorities having not decided to have the trial of Mela Ram by a court, martial it is manifest that the criminal Court was competent to try Mela Ram.
17. It may also he mentioned that criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952 have been issued by the Central Government in exercise of the powers conferred by Sub-Section (1) of Section 519 of the Criminal Procedure Code In the case of Joginder Singh v. State, 1969 Delhi LT 1 (FB), the accused, who was subject to Army Act, had been convicted in a case under Section 376, Penal Code, by Assistant Sessions Judge, On appeal the conviction of the accused was affirmed by the learned Sessions Judge. The accused then came up in revision to the High Court and it was urged that there had been violation of Rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules and as such the trial was vitiated. The matter was referred to a Full Bench. Dua, C.J., who spoke for the majority held :
    ".... the violation of Rules 3 and 4 of the Rules does not seem to us by itself to deprive the Magistrate of his inherent jurisdiction, thereby automatically nullifying all subsequent proceedings and the effect of such violation has to be determined on evaluation of all the facts and circumstances of each case."
18. In view of the above, I am of the opinion that the conviction of Mela Ram accused cannot be set aside because of his being tried in a criminal court and not by a court-martial.
19. As regards the sentence, I find that the accused committed a heinous offence. The material on record shows that Swaran Lata was aged between 11 and 12 years at the time of the present occurrence. The evidence of P.W. 14 Sudarshan Kumar, Head Teacher of Government Primary Schcol, Dilbari, shows that at the time Swaran Lata was admitted in the school her date of birth was given by her father as May 15, 1955 vide Exhibit P.W. 14/A, copy of the form filled in at that time. Exhibit P.W. 13/A is the copy of the transfer certificate when Swaran Lata was admitted in Government High School, Bharwain. In that certificate too her date of birth was mentioned to be May 15, 1955. According to Dr. Nanda who examined Swaran Lata, her age was 12 years, and she had not started her menstruation. The evidence of the doctor further shows that as a result of this occurrence Swaran Lata became psychologically disturbed. Swaran Lata's father Hans Raj (P.W. 16) has deposed that her date of birth of May 15, 1955. In view of the fact that the two accused committed rape on a girl of tender years, I am of the opinion that no interference in their sentence is called for. I, therefore, maintain the conviction and sentence of the two accused. The appeals consequently fail and are dismissed.

Appeals dismissed.

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The Rape Captial - Gang Raped in Moving Bus in Delhi, India, Are Women Safe in our Capital ? Yet Another Story posted on Geek Upd8 - Law Blog thanks to Deepali Sharma - http://g8.geekupd8.com/DelhiGangRapeDec2012

we are in hell what is happenning in india after hereing such we would woke through out all india to change rules and to be punished as in ARABIAN COUNTRIES then crime rate will decrease come to start to make end point for all,,

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